I hate disagreeing with so many smart people, many of whom are friends of mine, but I really do disagree with the 500-law-professor letter to the ABA.

Many good people signed this letter to the ABA (hat tip to TaxProf Blog) suggesting that the proposed change to Standard 405 (there are two different alternatives being proposed) would "cause a negative impact on academic freedom, the creation of safe space for dissenting voices, and recruitment and retention of minority law professors."  I'm not convinced that those statements are accurate.

Here's a description of the proposed changes:

Alternative 1 requires, in 405(d), that all full-time faculty have a form of security of position sufficient to ensure academic freedom and to attract and retain a competent full-

time faculty. It does not require that all full-time faculty have the same form of security of position, and it does not require tenure. Proposed Interpretations 405-1 and 405-2 provide that a tenure system is a safe-harbor for satisfying the security of position required in Standard 405(d). For full-time faculty positions not covered by tenure, the law school must establish that its policies establish conditions sufficient to attract and retain a competent full-time faculty and protect academic freedom.

Alternative 2 requires a law school to maintain conditions adequate to attract and retain a

competent full-time faculty sufficient to permit the law school to comply with the Standards. It requires policies to protect academic freedom of its faculty and provide for meaningful participation of full-time faculty in the governance of the school. Alternative 2 does not require tenure or security of position for any full-time faculty.

Proposed Interpretations 405-1 and 405-2 provide that a tenure system is a safe-

harbor [sic] for satisfying the attract and retain provision and the academic freedom provision of Alternative 2.  For full-time faculty positions not covered by tenure, the law school must establish that its policies establish conditions sufficient to attract and retain a competent full-time faculty and protect academic freedom.

The egalitarian in me doesn't particularly like the fact that Alternative 1 "does not require that all full-time faculty have the same form of security of position," but that's an issue for another day.  

I'm trying to figure out why I'm so bothered by the 500-professor letter.  I think part of the reason stems from statements like this:

• "[C]reativity and innovation in the classroom will be stifled if a teacher is overly concerned that her job may be jeopardized if she asks her students to tackle provocative topics."
• "Without the protections of tenure and its underlying value of academic freedom, the ability to write about potentially controversial subjects, such as racial and intersectional discrimination, civil rights, criminal justice, affirmative action, structural inequities in the tax system, and the role of corporations in public life, without fear of reprisal will be threatened."
• "Without a system of tenure, these teachers and scholars [who "engage in advocacy on behalf of unpopular causes"] could become subject to dismissal based solely on their views.
• "[Without the protection of tenure, s]tudents will go through law school without exposure to diverse, exciting, and enlightening ideas."
• "Quite apart from the diversity of voices that tenure has promoted, it protects minority
  professors in another fundamental way: it makes the perpetuation of discrimination more
  difficult. Discriminatory discharge is the most frequently litigated claim under federal
  workplace antidiscrimination laws."

I think that these statements, and many others in the letter, go too far.  Many, many pre-tenured people and people on long-term contracts challenge their students, write on controversial issues, and engage in advocacy.  Maybe those without tenure are holding their breath and hoping that they don't get fired for challenging conventional wisdom, but they're still out there, challenging it.  So it can't be the case that tenure is the magic wand that suddenly gives someone permission to have independent and challenging ideas. 

Yes, I know that tenure provides all sorts of freedom for those who hold it, and I realize that I benefit from having tenure.  Tenure protects everyone, not just people of color (another problem that I have with the letter), from being fired for exploring controversial ideas--or at least from being fired without plenty of due process first.  But there are all sorts of non-tenure-based protections against discrimination.  I'm no employment lawyer, but I'm pretty sure that a contract that spells out someone's job duties provides some protection for a person hell-bent on performing those selfsame duties to the best of his abilities.

And tenure has its costs, too.  There's an inherent contradiction between the desire to keep the costs of law school down in order to increase access (a good thing--setting aside the issue of whether the job market for graduates will rebound) and the insistence on maintaining a system that is responsible for much of a school's fixed costs.  We are in a time where demand for law school has dropped precipitously, and we are merely tinkering around the edges of adapting to the new normal.

Let's explore those costs of tenure.  I happen to be blessed by being in a school in which pretty much everyone is fully engaged in good teaching and research.  Like Harold Koh's well-known story about being able to point to each Yale professor's office door and identify what "idea" that person has contributed to legal scholarship,* I can walk down our halls and identify what each of my colleagues is writing about (some just by general topic area and some in more detail).  Because I'm in a school where we really do value teaching and scholarship, I think that what I'm about to say isn't sour grapes.**

Tenure protects the good and sincere, but it also protects those who are just "phoning it in"--who haven't written in decades, or who produce bad scholarship that has no hope of moving our understanding of law or the legal system forward,*** or who don't think of new ways to convey their knowledge to students.  Barring meaningful post-tenure review, we are one of the few enterprises without any repercussions for malfeasance or non-feasance. 

I guess I just don't see why 10- or 12-year contracts with a presumption of renewal are so much worse than lifetime tenure, and what bothers me about the 500-professor letter the most is that I wanted to read arguments that were nuanced.   Instead, I read lines like this:  "Every school that grants tenure currently has the ability to reduce its fixed costs by curtailing hiring or declaring a financial exigency, among other options."  Really?  The way to solve the problem of fixed costs is to declare academic bankruptcy?  That's just not a realistic option.

So I'm disappointed and frustrated by the letter, in much the same way that I was disappointed and frustrated by some of the points made by the recent Task Force on the Future of Legal Education (also a subject for another day).  I think that the people who wrote the letter are frustrated and scared that the inroads we've made in legal education risk being subverted if their schools end up with deans who don't treat the academic enterprise with respect.  The solution likely comes with some hard thinking about how governance should work.  The only good news I have is that folks on both side of these debates are coming to the debates with good intentions.  That's not a bad start.


*  When I first heard Harold Koh tell this story, I spent a fair amount of time during the rest of his speech asking myself, "Do I even have an idea?"  It took me a while to be able to identify mine (which, if you're curious, involves the intersection of lawyer behavior with a variety of topics), but then I was able to tune back into what he was saying.

** Of course, I write about cognitive biases, too, so the irony here isn't lost on me.

***  And by "bad scholarship," I don't mean "scholarship that doesn't agree with my own world view."  At every school at which I've worked, there have been people whose scholarship I didn't really understand (and there have been people who didn't understand mine).  Most of the time, what I see is a general and accepting attitude of "well, it's not MY thing, but it seems well-reasoned and, in that person's field, I think it's moving the discussion forward."  (And those few times at conferences when I do hear professors discuss some scholarship in derogatory terms, I more often hear them call it "doctrinal"--as if doctrinal analysis is worthless--or critique it for not being "inclusive" enough.  I'm not particularly conservative, but I worry that some of the diverse voices that we're missing in the academy are conservative ones.  If it's true that we tend only to hire people who are most like us, shouldn't we be worried that there seem to be way more liberals than conservatives on our faculties?)  So I don't think that "writing controversial scholarship" is at risk with the ABA's proposal.  Writing doctrinal or conservative pieces might be, if a school's governance structure is intolerant of the diversity of viewpoints.